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Smithson: Union wins the latest battle over employee alcohol testing

One of the great and long-running battlegrounds in the world of employment law is mandatory, random testing for impairment.

The latest round of that battle—on the eastern front—has been won, handily, by the trade unions.

Irving Pulp & Paper Limited operates a kraft paper mill along the banks of the St. John River in the city of Saint John, New Brunswick. In 2006, Irving unilaterally adopted a workplace policy for mandatory and random alcohol testing, by breathalyser, for employees holding safety sensitive positions.

Randomness was achieved by having the names of the prospective testees selected by an off-site computer.

In any 12-month period, the computer would select 10 per cent of the names on the list for testing.

An Irving employee, and member of the Communications, Energy and Paperworkers Union who occupied a so-called “safety sensitive” position, was tested under the authority of Irving’s policy.

The test result for that employee (reportedly a “teetotaller”) was negative, but a policy grievance was still filed by the union challenging the legitimacy of the policy.

At arbitration, Irving’s policy was struck down on a “balancing of interests approach,” when the arbitration board determined that Irving “failed to establish a need for the policy in terms of demonstrating the mill operations posed a sufficient risk of harm that outweighs an employee’s right to privacy.”

On appeal, the arbitrator’s decision was quashed.

The New Brunswick Court of Appeal concluded: “It is not difficult to support the contention that Irving’s kraft paper mill qualifies as an inherently dangerous workplace as would a chemical plant.

“This is why evidence of an existing alcohol problem in the workplace was not required to support its policy of random alcohol testing. This is why the arbitration board’s decision cannot stand.”

That court’s reasons seemed to stand for the principle that once an employer has demonstrated it operates an “inherently dangerous” operation, a policy calling for mandatory testing of employees is automatically acceptable.

That was a pretty large departure from the basis for prior decisions and, not surprisingly, Canada’s top court was asked to weigh in on the topic.

In a 6-3 decision (no overtime periods or shootout were required), the Supreme Court of Canada overturned the judgment of New Brunswick’s Court of Appeal and restored the original arbitration decision.

In doing so, the Supreme Court stuck close to time-tested arbitral analysis of employer policies and particularly those of the workplace impairment testing variety.

The court recognized that, as Irving’s is a unionized workplace, the legal issue was “whether implementing a random alcohol testing policy was a valid exercise of the employer’s management rights under the collective agreement.”

It confirmed that, “when a workplace is dangerous, an employer can test an individual employee if there is reasonable cause to believe that the employee was impaired while on duty, was involved in a workplace accident or incident, or was returning to work after treatment for substance abuse.”

However, it recognized that “a unilaterally imposed policy of mandatory, random and unannounced testing for all employees in a dangerous workplace has been overwhelmingly rejected by arbitrators as an unjustified affront to the dignity and privacy of employees unless there is reasonable cause, such as a general problem of substance abuse in the workplace.”

Critically, the court noted that at Irving’s facility “there were only eight documented incidents of alcohol consumption or impairment at the workplace over a period of 15 years from April 1991 to January 2006.”

There were no “accidents, injuries or near misses connected to alcohol use.”

This was the turning point because, though there was no dispute that Irving’s is a dangerous workplace, there was a great divide as to whether its impairment testing policy was reasonable in the circumstances.

The court stated that dangerousness “has never been found to be an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences.

What has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.”

This was the failing of Irving’s case—it had no real evidence whatsoever that there was any such problem at its facility.

The court agreed with the arbitrator (and the union) that, in the circumstances, random alcohol testing by Irving was “an unreasonable exercise of management rights under the collective agreement.”

Employers can take heart that the workplace testing war isn’t over just yet.

It’s still being waged—on the western front—by Suncor in Alberta.

Suncor, based on published reports, has armed itself with evidence of over 100 workplace incidents involving alcohol or drug use during a span of two years and three deaths in the last decade.

Robert Smithson is a labour and employment lawyer, operating Smithson Employment Law.

www.smithsonlaw.ca

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